As filed with the U.S. Securities and Exchange
Commission on March 15, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ARCHER AVIATION INC.
(Exact name of registrant as specified in its
charter)
| Delaware |
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85-2730902 |
(State or other jurisdiction of incorporation or
organization) |
|
(I.R.S. Employer Identification No.) |
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190 West Tasman Drive
San Jose, CA |
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95134 |
| (Address of principal executive offices) |
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(Zip code) |
Amended and Restated 2021 Equity Incentive
Plan
2021 Employee Stock Purchase Plan
(Full titles of the plans)
Adam Goldstein
Chief Executive Officer and Director
Archer Aviation Inc.
190 West Tasman Drive
San Jose, CA 95134
(Name and address of agent for service)
(650) 272-3233
(Telephone number, including area code, of agent for service)
Copies to:
| Patrick V. Grilli |
Andy Missan |
| Ran D. Ben-Tzur |
Eric Lentell |
| Joshua W. Damm |
Archer Aviation Inc. |
| Fenwick & West LLP |
190 West Tasman Drive |
| 801 California Street |
San Jose, CA 95134 |
| Mountain View, CA 94041 |
(650) 272-3233 |
| (650) 988-8500 |
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Indicate by check mark whether
the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging
growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting
company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large
accelerated filer ¨ |
Accelerated
filer ¨ |
| Non-accelerated
filer x |
Smaller
reporting company x |
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Emerging
growth company x |
If an emerging growth company,
indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised
financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
REGISTRATION OF ADDITIONAL SHARES PURSUANT TO
GENERAL INSTRUCTION E
Archer Aviation Inc. (the “Registrant”)
is filing this Registration Statement with the Securities and Exchange Commission (the “Commission”) to register
(a) 12,292,155 additional shares of Class A common stock, par value $0.0001 per share (the “Class A Common
Stock”) available for issuance under the Registrant’s Amended and Restated 2021 Equity Incentive Plan (the “Amended
and Restated 2021 Plan”), pursuant to the provision of the Amended and Restated 2021 Plan providing for an annual automatic
increase in the number of shares reserved for issuance under the Amended and Restated 2021 Plan and (b) 1,809,383 additional shares
of Class A Common Stock available for issuance under the Registrant’s 2021 Employee Stock Purchase Plan (the “Purchase
Plan”), pursuant to the provision of the Purchase Plan providing for an annual automatic increase in the number of shares
reserved for issuance under the Purchase Plan.
In
accordance with General Instruction E of Form S-8, and only with respect to the Class A Common Stock that is issuable under
the Amended and Restated 2021 Plan and the Purchase Plan, this Registration Statement hereby incorporates by reference the contents of
the Registrant’s Registration Statements on Form S-8 filed with the Commission on December 8, 2021 (Registration No. 333-261547), March 14, 2022 (Registration No. 333-263544) and July 1, 2022 (Registration No. 333-265955), to
the extent not superseded hereby. In accordance with the instructional note to Part I of Form S-8 as promulgated by the Commission,
the information specified by Part I of Form S-8 has been omitted from this Registration Statement.
Part II
INFORMATION REQUIRED
IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents
by Reference.
The following documents filed by the Registrant with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), are incorporated by reference into this Registration Statement (other than information in such filings that was “furnished”
under applicable Commission rules rather than “filed”):
(a) The
Registrant’s Annual Report on Form 10-K for the year ended December 31, 2022, filed with the Commission on March 15,
2023, pursuant to Section 13(a) of the Exchange Act;
(b) The
Registrant’s Current Reports on Form 8-K filed with the Commission on January 9, 2023, February 7, 2023, February 16, 2023, and February 27, 2023.
(c) All
other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by
the Registrant’s Annual Report on Form 10-K referred to in (a) above; and
(d) The
description of the Registrant’s common stock which is contained in the Registration Statement on Form 8-A filed on October 27, 2020 (File No. 001-39668) under Section 12(b) of the Exchange Act, including any amendment or report filed for the purpose
of updating such description.
All other reports and documents subsequently filed
by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (other than information in such filings that
was “furnished” under applicable Commission rules rather than “filed”) on or after the date of this Registration
Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to
be a part of this Registration Statement from the date of the filing of such reports and documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any subsequently filed document that also is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as
so modified or superseded, to constitute a part of this Registration Statement.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Jose, State of California, on this 15th day of March, 2023.
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ARCHER AVIATION INC. |
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By: |
/s/ Adam Goldstein |
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Adam Goldstein |
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Chief Executive Officer and Director |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each
person whose signature appears below constitutes and appoints Adam Goldstein and Mark Mesler, and each one of them, as his or her true
and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in their name, place and
stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or his or her substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
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Signature |
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Title |
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Date |
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/s/ Adam Goldstein |
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Chief Executive Officer and Director |
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March 15, 2023 |
| Adam Goldstein |
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(Principal
Executive Officer) |
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/s/ Mark Mesler |
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Chief Financial Officer |
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March 15, 2023 |
| Mark Mesler |
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(Principal Financial and Accounting Officer) |
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/s/
Deborah Diaz |
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Director |
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March 15, 2023 |
| Deborah Diaz |
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/s/
Fred Diaz |
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Director |
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March 15, 2023 |
| Fred Diaz |
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/s/ Oscar
Munoz |
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Director |
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March 15, 2023 |
| Oscar Munoz |
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/s/ Barbara Pilarski |
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Director |
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March 15, 2023 |
| Barbara Pilarski |
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/s/ Maria Pinelli |
|
Director |
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March 15, 2023 |
| Maria Pinelli |
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/s/ Michael Spellacy |
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Director |
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March 15, 2023 |
| Michael Spellacy |
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EXHIBIT 5.1
March 15, 2023
Archer Aviation Inc.
190 West Tasman Drive
San Jose, California 95134
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
As counsel to Archer Aviation
Inc., a Delaware corporation (the “Company”), we have examined the Registration Statement on Form S-8 (the
“Registration Statement”) to be filed by the Company with the Securities and Exchange Commission (the “Commission”)
on or about March 15, 2023 in connection with the registration under the Securities Act of 1933, as amended (the “Securities
Act”), of an aggregate of 14,101,538 shares (the “Shares”) of the Company’s Class A
Common Stock, $0.0001 par value per share (the “Class A Common Stock”), subject to issuance by the Company
(a) upon the exercise or settlement of awards to be granted under the Company’s Amended and Restated 2021 Equity Incentive
Plan (the “Amended and Restated 2021 Plan”) and (b) pursuant to purchase rights to acquire shares of Class A
Common Stock to be granted under the Company’s 2021 Employee Stock Purchase Plan (the “Purchase Plan”,
and together with the Amended and Restated 2021 Plan, the “Plans”).
As to matters of fact relevant
to the opinions rendered herein, we have examined such documents, certificates and other instruments which we have deemed necessary or
advisable, including a certificate addressed to us and dated the date hereof executed by the Company (the “Opinion Certificate”).
We have not undertaken any independent investigation to verify the accuracy of any such information, representations or warranties or
to determine the existence or absence of any fact, and no inference as to our knowledge of the existence or absence of any fact should
be drawn from our representation of the Company or the rendering of the opinion set forth below. We have not considered parol evidence
in connection with any of the agreements or instruments reviewed by us in connection with this letter.
In our examination of documents
for purposes of this letter, we have assumed, and express no opinion as to, the genuineness and authenticity of all signatures on original
documents, the authenticity and completeness of all documents submitted to us as originals, that each document is what it purports to
be, the conformity to originals of all documents submitted to us as copies or facsimile copies, the absence of any termination, modification
or waiver of or amendment to any document reviewed by us (other than as has been disclosed to us), the legal competence or capacity of
all persons or entities (other than the Company) executing the same and (other than the Company) the due authorization, execution and
delivery of all documents by each party thereto. We have also assumed the conformity of the documents filed with the Commission via the
Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”), except for required EDGAR formatting changes,
to physical copies submitted for our examination.
The opinions in this letter
are limited to the existing General Corporation Law of the State of Delaware now in effect. We express no opinion with respect to any
other laws.
Based upon, and subject to,
the foregoing, it is our opinion that the Shares, when issued and sold by the Company in accordance with the terms (including, without
limitation, payment and authorization provisions) of the applicable Plan and the applicable form of award agreement thereunder, against
the Company’s receipt of payment therefor (in an amount and type of consideration not less than the par value per Share), and duly
registered on the books of the transfer agent and registrar for the Shares in the name or on behalf of the holders thereof, will be validly
issued, fully paid and non-assessable.
We consent to the use of this
opinion as an exhibit to the Registration Statement and further consent to all references to us, if any, in the Registration Statement,
the prospectuses constituting a part thereof and any amendments thereto. We do not thereby admit that we are within the category of persons
whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
This opinion is intended solely
for your use in connection with issuance and sale of the Shares subject to the Registration Statement and is not to be relied upon for
any other purpose. In providing this letter, we are opining only as to the specific legal issues expressly set forth above, and no opinion
shall be inferred as to any other matter or matters. This opinion is rendered on, and speaks only as of, the date of this letter first
written above, and does not address any potential change in facts or law that may occur after the date of this opinion letter. We assume
no obligation to advise you of any fact, circumstance, event or change in the law or the facts that may hereafter be brought to our attention,
whether or not such occurrence would affect or modify any of the opinions expressed herein.
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Very truly yours, |
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/s/
Fenwick & West LLP |
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Fenwick & West LLP |